The Bottom Line
on Trump’s PTO: Michelle Lee Must Go

One
thing
you learn early on in the Conservative Movement is the maxim,
Personnel
Is Policy.

For
a
new administration pledged to turn the ship of state to effect the
goal of America’s economic and industrial restoration, the same
turn must be made regarding intellectual property. And it’s
hard to imagine that the Obama picks to lead the Patent and Trademark
Office or the Copyright Office could be part of the solution in IP
policy, if America is to be made great again.

For
those
watching the inside baseball in Washington of musical chairs,
where the Trump administration’s people come in and the Obama
administration’s people leave, the intrigue about whether Obama’s
Under Secretary for Intellectual Property and Director of the United
States Patent and Trademark Office, Michelle
Lee,
is staying or going
has generated much speculation and concern.

Google,
Michelle
Lee’s Alma Mater

I
share that concern. Michelle Lee was closely tied to Google,
the Obama administration’s corporate darling. As my friend
Larry Hart has shown, Google and its antipatent Silicon set “enjoyed
an
unprecedented level of access”
to the Obama crowd.

While
Google
has contributed technologically, it hasn’t often
strengthened the critical element underpinning the most important
cutting-edge scientific commercial advances like the technological
infrastructure that enables mobile communication or biologics,
immunotherapy and biopharmaceuticals that can keep people out of the
hospital or from needing more expensive medical care later:
intellectual
property
rights.

Google
has
spent millions of dollars buying influence and ensconcing its
people in Washington over the past decade. Michelle Lee is one
of Google’s coups: The PTO run by a senior alumna of the
epitome of antipatent, anti-intellectual property rights corporate
elitists.

It’s
no
secret that Google has little regard for IP, nor are patents
important to the corporation’s business model. Google has
helped lead the policy fights to weaken patents and diminish patent
rights — which is to say to undermine
property
rights.

AIA,
PTO,
and the Assault on Property Rights

The
PTO
under Obama first pushed for radical patent legislation, then has
implemented provisions of it, the so-called America
Invents Act, which
has done much to harm inventors and invention, in Google and
company’s general direction. The AIA, which deplorably
enjoyed the strong support of a lot of otherwise conservative
Republicans, further undermined the American patent system’s
democratized, property rights-oriented design that led to a who’s
who of iconic inventors such as Edison and the Wright Brothers, as
well as the foundation for America’s wealth-creating industrial
leapfrog, including manufacturers like Eli Lilly & Co. and
General Electric.

The
AIA
shifted from our property rights-based first-to-invent to a
“globally harmonized” first-to-file system, opened up a can of
worms regarding prior art and anonymous and foreign prior art
assertions, gutted the one-year grace period inventors traditionally
enjoyed before having to go to the expense of prosecuting a patent
application, set up postgrant review proceedings that have run wild,
invalidating issued patents more than 70 percent of the time, and
much more mischief.

With
the
PTO’s implementation of AIA, Google could only be pleased with
its alumna. Lee has led the U.S. Patent Office down the path of
an agency that no longer stands behind its work. Lee’s
allowing the Patent Trial and Appeal Board to decimate issued patents
in the most reckless manner would indicate that Lee is less than
friendly to invention and property rights. No wonder Judge
Randal Rader has called the PTAB and its postgrant proceedings
“patent death panels.” In
fact,
Lee’s PTO has arguably become friendlier to patent infringers
than to inventors.

Trump’s
Unexpected
Supporter, Phyllis Schlafly

The
late
Phyllis Schlafly, the conservative stalwart and founder of Eagle
Forum Education & Legal Defense Fund, endorsed Donald Trump
during the Republican primary in early 2016.

Mrs.
Schlafly
caught a lot of flak from other conservatives who favored
one of the other, more conventional conservative candidates.
Yet, like her early endorsement of Ronald Reagan in 1980, she stuck
with her pick of Mr. Trump.

Beginning
decades
ago, Mrs. Schlafly made Eagle Forum the leading conservative
proponent of our uniquely American patent system, invention,
inventors, and the democratic, property rights-based orientation of
U.S. patents.

This
is
no accident, because Mrs. Schlafly’s father was an independent
inventor; he invented a rotary engine (U.S.
Patent
No. 2,373,791).
She
clearly got the connection between our patent system and the
inherent property right to one’s invention, articulated by the
political philosopher John Locke, Founding Father James Madison and
other influencers of the conservative mind.

The
2016
GOP platform, on which Mrs. Schlafly labored, strongly
acknowledges the vital property right of intellectual property.
The document states that IP is “the wellspring of American economic
growth and job creation.”

The
Bottom
Line

The
bottom
line regarding the Trump administration’s PTO director is
this:

Michelle
Lee must go. She is Obama’s pick, and new leadership under the
markedly different new administration is required, if change is to
occur.

Michelle
Lee’s track record at the PTO doesn’t align with strong, inherent
property rights. It indicates that she lacks an understanding and
appreciation for the right to the labor of one’s mind, the
legitimacy of and right to license or sell or trade a patent, the
fact our Constitution stipulates IP as an exclusive
right, and the role IP plays in commercializing an invention such as
being an intangible asset that adds to a young company’s economic
value.

The
optics of Michelle Lee staying on at the PTO would be detrimental to
President Trump’s stated goals for taking the country in a
different, more prosperity-producing direction. Making America great
again will require a renewed commitment to property rights.
Keeping a prominent ex-Googler in such a strategic office would risk
destroying the hope and confidence of the little-guy inventors and
IP-centered established companies across America, who have suffered
under the anti-IP regime Michelle Lee represents.

President
Trump owes it to a leader of the Conservative Movement whose
convictions about inherent property rights to one’s inventions,
coupled with her bold endorsement early on, argue for naming a PTO
director whose IP principles align more with those of Phyllis
Schlafly than Barack Obama.

The Author

James
Edwards
consults on intellectual property, health care innovation, and
regulatory and policy issues. Among other clients, Edwards advises
the nonprofit group Eagle Forum on patent policy and is Co-Director
of the Inventor's Project. He participates in the Medical Device
Manufacturers Association's Patent Working Group. Edwards mentors
start-ups and early-stage companies, largely in the med tech space,
and is involved in several IP-centric projects.

Edwards
served as Legislative Director to Rep. Ed Bryant, R-Tenn., then a
member of the U.S. House Judiciary Committee, and handled IP
legislative matters. Edwards also worked on the staffs of Rep. John
Duncan, R-Tenn., the U.S. Senate Judiciary Committee, and Sen. Strom
Thurmond, R-S.C. In addition, he was an association executive at the
Healthcare Leadership Council. Edwards earned a Ph.D. at the
University of Tennessee, and bachelor's and master's degrees at the
University of Georgia.